Ezekiel v. Dixon
| Decision Date | 31 July 1847 |
| Docket Number | No.25.,25. |
| Citation | 3 Ga. 146 |
| Parties | Emanuel Ezekiel, plaintiff in error. vs. George M. Dixon, defendant in error. |
| Court | Georgia Supreme Court |
Claim. Tried before Judge Alexander. In Muscogee Suprior Court. May Term, 1847.
Ezekiel levied an attachment sued out against one Nathan Lichton, upon certain merchandise, which was claimed by Dixon. Upon the trial, Dixon read in evidence a deed to himself and one Simon Lichton, executed by said Nathan Lichton, assigning the goods, wares and merchandise, to them, in trust for the benefit of certain specified creditors, who were to release Lichton from all further liability. (For a copy of this deed see the opinion delivered by the Supreme Court.) The plaintiff. Ezekiel. was not one of the creditors provided for by said deed. Some of the creditors named, but not all of them, had assented to the terms of the deed. Upon this state of facts the Court below charged the jury on the trial, that such a deed was not in violation of the act of 1818, unless a trust was reserved for the benefit of the seller, and if executed buna fide it. was valid.
To which charge the plaintiff excepted. The jury found for the claimant.
Jonhson & Williams, and G. E. Thomas, for plaintiff, made the following points.
1st. That said deed is void under the Act of 1818, because it prefers some of the creditors to the exclusion of others. Prince, 164, 165; 9 Law Lib. 45, 46, 57, 84, 85; Hotchk. 426.
2d. Because the assent of the creditors was had after the levy of the attachment. 7 Ala. R. (new series) 262.
3d. Because said deed contains a clause whereby a future benefit may accrue to said Lichton, in this; that if enough of the creditors do not accept and comply with the terms of said deed, to exhaust the property turned over, the residue will enure to the benefit of the defendant, or to his brother, one of the trustees.
4th. That the compensation to the trustees is unreasonable and unjust.
5th. That said deed is void for uncertainty.
In support of the first point they cited, 1 Kelly R. 157 and 176, in addition to the other authorities referred to.
Jones, Benning & Jones, for claimant, the defendant in error, submitted the following points and authorities:
First. The Act of 1818 can, by its title, extend only to assignments "of property, " "to a portion of creditors, " to the exclusion of others. Act of 1818; Prince, 164.
2d. An assignment to trustees for creditors, is not the same thing as an assignment directly to creditors, particularly when, as in this case, the creditors are made cestuis que trust only of the proceeds of the thing assigned.
3d. But if it is the same thing, then this deed is saved by the proviso in said Act of 1818. Prince, 164, 165.
Second. But is not the deed in violation of some other law? for instance the 13th Eliz. Hotchk. 424. It is not, for—
1st. By the statute 13th Eliz., a debtor can make no assignment, "with intent to hinder, delay, or defraud, creditors."
2d. But he may by unconditional assignment prefer some creditors to others. Eastman vs. McAlpin, 1 Kelly, 157; Grover and others vs. Wakeman, 11 Wendell, 187. 3d. Therefore, an assignment unconditionally, preferring some creditors, is not one made "with intent to hinder, delay, or defraud creditors, " within the 13th Eliz.
4th. Now an assignment unconditionally, preferring some creditors, is one unconditionally postponing others.
5th. But if creditors cannot say that a postponement of them, which was certain and unconditional, was made "with intent to hinder, &c, them, " much more can they not say, that a postponement, which was only conditional and doubtful, was so intended. 11 Wend. 187, supra; 2 Bin. 174; 3 Price, 6; 5 Mass. 42; 8 Pick. 63; 5 id. 28; 3 Penns. 86; 5 Greenleaf, 245; 2 Stew. 86; 3 Watts, 198; 2 Paige, 490.
6th. And indeed a preference of some creditors, whether absolute or conditional, may as well be said to be intended to advance creditors as to "hinder'' them.
Third. A creditor not preferred (as Ezekiel) cannot complain of these burdens laid upon the creditors preferred, particularly when, as in this case, the burdens, considered per se, are for his benefit, as they leave him the future acquisitions of the debtor without competitors.
This is also true of such creditors, as, having a chance of being preferred, voluntarily reject it.
2. And as to such creditors as accept the assignment, if he may prefer them voluntarily, he may, upon consideration; at least such preference will stand till they complain. Indeed, the deed as to them, (being parties to it,) is good by the act of Elizabeth itself. The idea of duress therefore can find nothing in the case to attach itself to.
3. The principle, that if a debtor will surrender all of his property to his creditors, they ought to give him a full discharge from his debts, instead of being a principle of fraud and injustice, is one which is born of the purest and noblest feelings of the heart, and which is nurtured and cherished by the most deliberate convictions of the understanding. It is the foundation of all composition with creditors, and of every system of bankruptcy.
By the Court. —Lumpkin, J. delivering the opinion.
Nathan Lichton, an insolvent debtor, executed the following assignment to George M. Dixon and Simon Lichton, to wit:
"Georgia, Muscogee County.
Know all men by these presents, that I Nathan Lichton, of the County and State aforesaid, for and in consideration of the sum of five dollars to me in hand paid by George M. Dixon and Simon Lichton of said County and State, the receipt whereof I do hereby acknowledge, have sold and delivered, and by these presents do sell and deliver in consideration aforesaid as well as in consideration of the trusts and confidences hereinafter specified to be well and truly performed by the said George M, Dixon and Simon Lichton, the goods, wares, and merchandise now in store and in possession of the said Nathan Lichton, in the city of Columbus, Georgia, the same consisting among other things of brandy, gin, whiskey, rum, wine, sugars, tobacco, cutlery, shoes, razor-strops, bonnets, coffee, sugar, salt, nails, syrups, bitters, oils, candles, shot, lead, white lead, powder, wooden-ware, hats, hardware, matches, crockery, pickles, caps, soap, spices, indigo, London porter, copperas, together with an assorted stock of dry goods, with many and all other articles in store as aforesaid. And in consideration aforesaid the said Nathan Lichton hereby assigns and transfers to the said George M. Dixon and Simon Lichton all the book debts or accounts due to the said Nathan Lichton, for goods, wares, &c. sold by said Nathan Lchton.
In trust and confidence that said George M. Dixon and Simon Lichton shall sell and dispose of the aforesaid stock of goods, wares and merchandise, to the best advantage, at public or private sale, for cash, or on such terms as they the said Dixon and Simon Lichton shall think best; and also shall collect all the book debts due the said Nathan Liehton, and receipt for the same. In trust further, that the said George M. Dixon and Simon Lichton shall pay off and discharge all debts due by said Nathan Lichton for rents, or to become due on contracts already made, and shall also retain for their services in performance of the trusts herein specified, the sum of five per cent. each, and in addition thereto a sum not exceeding five hundred dollars for extra time and labour in making said sales and the settlements herein referred to. In trust further, that the said George M. Dixon and Simon Lichton, after having sold and disposed of said stock of goods, wares and merchandise, and realized the money therefor, and collected all the book debts due said Nathan Liehton which can be made available, shall pay out the same, pro rata, to all such creditors hereto annexed, who shall file their claims in the hands of said George M. Dixon and Simon Lichton within six months from the date hereof, and who shall release the said Nathan Lichton from all further liability for or on account of said debts.
In testimony whereof, and in acceptance of the trusts herein created, all the parties hereto set their hands and seals, this twenty-fifth day of February, 1847.
NATHAN LICHTON, (L. S.)
GEO. M. DIXON, (L. S.)
SIMON LICHTON, (L. S.)
Signed, sealed and delivered in presence of E. Harsney.
To continue reading
Request your trial
- State v. Lowry
-
Patton v. Vanterpool
...only after vigorous debate. Less than six months after our opinion in Booth, Justice Lumpkin criticized the mischief rule in Ezekiel v. Dixon, 3 Ga. 146 (1847), stating that he "never can subscribe" to a doctrine authorizing judges to give statutes "such construction as will not only carry ......
-
Elliott v. State
...605, 128 S.Ct. 2783 ; punctuation omitted)), aff'd on other grounds, 573 U.S. 513, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014) ; Ezekiel v. Dixon, 3 Ga. 146, 153 (1847) ("[G]reat regard ought to be paid to the interpretation put upon a statute by the sages of the law who presided at the time, or......
- State v. Lowry
-
The Mischief Rule
...when the legislative action is the repeal of a statute or the reversal of a judicial decision. 137. See, e.g., Ezekiel v. Dixon, 3 Ga. 146, 158 (1847) (referring, in an opinion that extols the virtues of plain text, to “the mischief which the Assembly had in its eye at the time”). 138. Smit......